CITATION: Gorgis v. Hanna, 2015 ONSC 6129

DIVISIONAL COURT FILE NO.: 383/15

DATE: 20151007

SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT

RE: HANAN GORGIS (Responding Party/Applicant)

and

ADNAN HANNA (Moving Party/Respondent)

COUNSEL: Adnan Hanna, in person, Moving Party

A. Akinyemi, for the Responding Party

HEARD: In Toronto, in writing

E N D O R S E M E N T

(Leave to Appeal to the Divisional Court)

MOLLOY J:

Introduction

[1] The Respondent, Adnan Hanna, seeks leave to appeal to the Divisional Court from the Order of McWatt J. dated July 16, 2015, directing him to provide disclosure to the responding party Hanan Gorgis.

[2] The Order of McWatt J. was one in a series of Orders made by various judges against Mr. Hanna requiring financial disclosure in a family law dispute. At issue ultimately is the amount of child support Mr. Hanna is required to pay. Contempt proceedings were brought against Mr. Hanna for failure to comply with a disclosure Order previously made by Czutrin J. on June 23, 2014. On April 9, 2015, in the absence of Mr. Hanna who failed to appear, Perkins J. found Mr. Hanna to be in contempt of the June 23, 2014 Order and made certain other Orders as a consequence. Mr. Hanna then moved to set aside the Order of Perkins J., which motion came on for hearing before McWatt J. on July 16, 2015.

[3] McWatt J. ordered Mr. Hanna to disclose the documents ordered by Perkins J. by August 10, 2015 and also to disclose his tax returns and notices of assessment for 2008-2012. Hanan Gorgis was also ordered to produce her tax returns and notices of assessment for the same years by August 20, 2015. She then adjourned Mr. Hanna’s motion to August 20, 2015, returnable before her.

[4] Mr. Hanna contends that he did not have prior notice about disclosing his tax returns for 2008-2012 and the Order of McWatt J. offends the rules of natural justice and fairness. He also objects to being ordered to produce documents ordered by Perkins J. before his motion to set aside that Order had been heard, particularly given the fact that he alleges he received no notice of the contempt motion. He further asserts that this is a matter of importance for the evolution of fair procedures in family law cases.

The Test for Granting Leave to Appeal

[5] The test for granting leave to appeal under Rule 62.02(4) of the Rules of Civil Procedure is well-settled. It is recognized that leave should not be easily granted and that the test to be met is a very strict one. There are two possible branches upon which leave may be granted. Both branches involve a two-part test and in each case, both aspects of the two-part test must be met before leave may be granted.

[6] Under Rule 62.02(4)(a), the moving party must establish that there is a conflicting decision of another judge or court in Ontario or elsewhere (but not a lower level court) and that it is in the opinion of the judge hearing the motion “desirable that leave to appeal be granted”. A “conflicting decision” must be with respect to a matter of principle, not merely a situation in which a different result was reached in respect of particular facts: Comtrade Petroleum Inc. v. 490300 Ontario Ltd.¸(1992), 7 O.R. (3d) 542 (Div.Ct.).

[7] Under Rule 62.02(4)(b), the moving party must establish that there is reason to doubt the correctness of the order in question and that the proposed appeal involves matters of such importance that leave to appeal should be granted. It is not necessary that the judge granting leave be satisfied that the decision in question was actually wrong; that aspect of the test is satisfied if the judge granting leave is satisfied that the correctness of the order is open to “very serious debate”: Nazari v. OTIP/RAEO Insurance Co., [2003] O.J. No. 3442 (S.C.J. per Then J.); Ash v. Lloyd’s Corp. (1992), 8 O.R. (3d) 282 (Gen Div., per Farley J.). In addition, the moving party must demonstrate matters of importance that go beyond the interest of the immediate parties and involve questions of general or public importance relevant to the development of the law and the administration of justice: Rankin v. McLeod Young Weir Ltd. (1986), 57 O.R. (2d) 569 (H.C.J. per Catzman J.); Greslik v. Ontario Legal Aid Plan (1988), 65 O.R. (2d) 110 (Div.Ct.).

Ruling

[8] The moving party appears to be relying on Rule 62.02(4)(b). Although he cites Rule 62.02(4)(a) in his material, he does not refer to conflicting decisions that would fall within the first part of that test. However, even if Mr. Hanna’s motion can be seen to fall under Rule 62.02(4)(a), he has not met the second aspect of that test, which is the requirement that he demonstrate that it is “desirable that leave be granted.” There is no emerging or unsettled question of law that needs to be settled at an appellate level. On the contrary, this is a fact-driven case. This is a protracted family law proceeding involving child support. What is desirable is that the issues be resolved on their merits in an expeditious manner, not that the parties be mired in interlocutory wrangling.

[9] I also find that the test is not met under Rule 62.02(4)(b). The motion judge had a broad discretion in this matter. I do not see any basis to doubt the correctness of her decision to order disclosure of very pertinent financial records. In any event, the second branch of the test is not met. There are no issues of over-arching importance to the public interest or to the administration of justice. On the contrary, this is a private dispute that is of great importance to the parties directly involved, but is not of any significance beyond that.

[10] Accordingly, this motion for leave to appeal is dismissed. The moving party shall pay costs to the responding party Hanan Gorgis, fixed at $2000, which are related to and enforceable as support.

MOLLOY J.

Date: October 7, 2015